Getting Ready for the Daniels Decision

The Supreme Court of Canada has announced that the decision in Daniels v. Canada will be released on Thursday April 14, 2016.  JFK will be posting its analysis of this decision in the days that follow but in preparation for the release of this decision we thought it would be useful to remind interested people of some of the issues at stake in this case.

What is this case about?

The Daniels case is about the scope of the Federal government’s jurisdiction over indigenous people.  This jurisdiction is laid out in s. 91(24) of the Constitution Act, 1867 which says that Parliament has jurisdiction over “Indians and Lands reserved for the Indians”.  While we have known for some time that the group of people covered by this provision is broader than so-called “status” Indians (that is persons having status under the Indian Act) there is little clarity about who is encompassed by this definition.  We have known that Inuit are within this jurisdiction ever since the decision in the so-called Re Eskimo case.  However what about people who are Métis?  What about people who are descended from “Indians” but do not have status?  What about the criteria for deciding what the cut-off line is?  These are issues that will likely be addressed in some way in this case.

Why does it matter?

In a number of recent decisions the Supreme Court of Canada substantially altered the traditional view of s. 91(24) to give the provinces much greater room to manoeuvre when Aboriginal and Treaty rights are at stake. This case now asks the opposite question – namely how much room does the Federal government have to operate in if it wants to take positive steps to implement national or even focused policies for Indigenous peoples.  If the court takes a narrow view of s. 91(24) then the Federal government will have less room to act in respect of people who do not have “status” under the Indian Act unless it can fit its actions under some other head of power in the Constitution.

So what exactly will the court decide?

The court has essentially been asked two questions:

  • Are the Métis Indians for the purpose of s. 91(24) and
  • Are non-status Indians “Indians” for the purpose of s. 91(24)?

The first question will probably get a “yes” or “no” answer.  The answer to the second question will be more complex and there is a chance the court will dodge the question (although if it does it will likely give some guidance about what the answer should be).  Here are the questions that likely will come up and may get answered:

  • Are the Métis Indians for the purpose of s. 91(24)?
  • Should we answer the question of whether or not non-status Indians are “Indians” for the purpose of s. 91(24)?
  • If so, who are the non-status Indians?
  • Are non-status Indians “Indians” for the purpose of s. 91(24)?

Along with the answers to these questions the court will undoubtedly provide at least some commentary on what should be expected to follow in the future.

Will this case require the Federal government to extend services to non-status Indians and Métis?

The provision of services is not directly at issue in this case but this case will likely set the stage for future fights over this issue.  If the court decides that Métis and non-status Indians are not Indians for the purpose of s. 91(24) the Federal government will be in a much stronger position in maintaining its focus on status Indians.  On the other hand, if the court takes an expansive vision of s. 91(24) expect future challenges – based especially on the Charter or the benefits promised in the Numbered treaties – to existing Federal policies.